ADA Internet Web

Near the end of the decision in Gil v. Winn-Dixie Stores, Inc., 2017 WL 2547242, at *3 (S.D. Fla. June 12, 2017) the trial court includes in its injunctive relief a requirement that Winn-Dixie “require any thirdparty vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.” This ruling rests on the ADA’s prohibition of discrimination “through contractual, licensing, or other arrangements.” [See, 42 U.S.C. §12182(b)(1)(A).] Winn-Dixie is a good reminder that becoming WCAG 2.0 compliant means focusing not just on your own website, but also on all the websites or web services to which you link. That can be a problem for businesses without much economic power.

Winn-Dixie is not a small business, but the web service providers mentioned in the Winn-Dixie decision, American Express and Google, are much bigger. Most businesses need third party vendors more than those vendors need them, so they aren’t likely to be able to force a change or do without the service provided them. This is an especially serious problem when the third party service is a pure internet business with a strong legal arguments against any ADA accessibility obligation. You might ask a vendor like Paypal or Google to guarantee accessibility for your customers, but you aren’t likely to succeed.

This disparity in bargaining power may be an excuse for partial non-compliance. In Natl. Assn. of the Deaf v. Harvard U., 2016 WL 3561622, at *16 (D. Mass. Feb. 9, 2016), report and recommendation adopted, 2016 WL 6540446 (D. Mass. Nov. 3, 2016) the court recognized that the ability to control third parties might play into the question of whether providing access presented an undue burden. As is so often the case in ADA litigation, once you reach the complexities of economic bargaining power and the advantages of similar but not identical third-party services the battle becomes so expensive that few businesses can afford to put up a fight.

Whether or not a business thinks it can negotiate with a big third-party vendor, it should at least consider the accessibility of third party websites and web services when deciding who to do business with, and it should document some effort to find accessible third-party vendors. Otherwise it may find that its own efforts to be accessible will not protect it from ADA liability while the courts slowly – very slowly – work toward resolving the nature of ADA obligations for websites.

Richard’s paper on the “Practical Implications of the Winn-Dixe Lawsuit” was posted to the Usablenet blog on August 23, 2017. This short paper reviews the history of application of the ADA to the Internet and the practical consequences of the present confusing state of the law. You can access it using the link above.

DOJ’s recent decision to put regulations concerning the internet and the ADA on indefinite hold has important implications for business, but not all of them are good.* It seems likely this move was prompted by executive orders from the Trump Administration requiring that agencies review proposed regulations and limit those that might increase costs to business. This has not been a notable success in terms of dollars. The savings so far ($22 million per year) amount to only .3% of the cost of regulations issued in the last five years. More important, at least with respect to the ADA, DOJ’s calculation that no regulation saves money ignores the very large cost imposed on business by uncertainty about how to deal with internet accessibility in an age when suing under the ADA is a large and growing industry. The proposed DOJ regulations, while they were absolutely wrong about the scope of the ADA with respect to the internet, at least provided business and the courts with guidance about what might be required. Without the regulations we are left in a wild wild west of conflicting court decisions and no officially sanctioned standard by which to judge internet compliance. More

The major news outlets seem to have overlooked the most interesting aspect (to me) of Amazon’s acquisition of Whole Foods; that is, Amazon’s leap into the world of serial ADA filers and controversy over internet accessibility. Amazon has experimented with physical stores, but soon it will have hundreds of them in the U.S., and every one of them has some kind of ADA accessibility issue. That isn’t an accusation, but an assumption based on the highly technical requirements in the 2010 ADA Standards and the proven inability of even the most sophisticated organizations to control the hundreds or thousands of people whose jobs are not primarily related to accessibility to do what is required. Somebody’s going to stack boxes in a hallway, block a checkout counter, take too long to repair a vandalized accessible parking sign, or fail to notice a 10% slope where 8.3% is the maximum. Whole Foods has already been sued many times based on accessibility failures in its stores. More

Yesterday, on June 13, Judge Robert Scola of the Southern District of Florida issued his opinion on website accessibility in Gil v. Winn Dixie Stores, Inc. Case No. 1:16-cv-23020 (SD Fla. June 13, 2017)He conducted a two day trial, but the outcome was inevitable after his earlier decision denying a motion to dismiss. In that decision Judge Scola adopted, in essence, the reasoning of Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006). Target held that if a website had a sufficient nexus with a physical place of business then it was covered by the ADA as a service of that public accommodation. This sidestepped the more theoretical question of whether a stand alone website is a public accommodation. It appears to have been undisputed that the Winn-Dixie website offered services related to its brick and mortar stores, so the trial in which evidence of that fact was put in the record was really just a formality. More